Two years ago, the Supreme Court's Obamacare decision infuriated conservatives. A few years before that, its Citizens United opinion outraged liberals. On Tuesday, the court will hear a case that combines the two. The result could be a blockbuster.
In the Hobby Lobby case, several businesses owned by devout Christians are challenging the constitutionality of Obamacare's contraception mandate, which forces employers to provide workers with insurance that covers abortion and contraception. Because these requirements conflict with the owners' religious beliefs, they filed lawsuits arguing that the law violates federal protections for the free exercise of religion.
Lower court judges disagreed over whether those protections can apply since the businesses are corporations Although corporations are considered "persons" under many federal laws, the Supreme Court had never expressly said they can bring lawsuits for religious freedom, or whether it's a right only flesh-and-blood persons enjoy.
That's where Citizens United comes in. In 2008, the court held that corporations are "persons" capable of exercising free speech rights under the First Amendment. Laws restricting the ability of corporations to express political opinions are, therefore, unconstitutional, the justices said.
The Citizens United decision was obviously correct. Corporations exercise First Amendment rights all the time: newspaper companies, television studios, radio broadcasters, book publishers — all are corporations that enjoy constitutional protection for their right to express themselves. Yet liberals denounced the decision. Sen. Al Franken of Minnesota called it a "disaster," and termed the notion of corporate personhood a "mess" that should be thrown into "the Dumpster of Bad Ideas." The New York Times — itself a corporation engaged in free speech — editorialized that protecting corporate speech rights would "expand corporations' rights in ways that would undermine the election system."
Now that Hobby Lobby's case is before the Supreme Court, some of the same figures insist that corporations should be denied the right to assert First Amendment protections for religious freedom.
The concept of corporate personhood is a perfectly sensible idea, and crucial to our constitutional freedom.
There is no more mystery to the notion that corporations are considered "persons" than there is when we speak of a sports team as a single unit. We say the Seahawks won the Superbowl, but there's no such thing, really, as the Seahawks — it's just shorthand for a group of people who compete together. The same is true of other corporations: They are groups of people who act together as a unit — a "body" of people. "Body" is the right term, since the word "corporate" comes from the Latin word for body — and the law has regarded corporations as "persons" since the days of ancient Rome.
Corporations exercise many constitutional rights. Government cannot take corporate property without paying just compensation, or search corporate offices without a warrant. In all these cases, the law speaks of the "rights of the corporation" as shorthand for the rights of the people who make up the corporation. In the same way, corporations can exercise religious freedom rights. After all, many churches are organized as corporations. Perhaps the oldest corporations known to our legal system are churches.
The Obama administration admitted this in its briefs in the Hobby Lobby case, but went on to argue that the companies involved in this lawsuit are primarily concerned with profit-making rather than religious observance. This should make no difference, though. Religious people often express their religious views through the corporations they form, even while engaged in profit-making. Hebrew National makes kosher hot dogs for profit, but that's also an exercise of religious freedom. Many other corporations blend religious and profit-making practices together. The Church of Jesus Christ of Latter-day Saints and other churches own profit-making ventures. In fact, the states of Massachusetts and Rhode Island, among others, were founded by companies that acted for both religious and profit-making reasons.
Moreover, shareholders also often exercise their voting rights for religious purposes. The Interfaith Center on Corporate Responsibility, which encourages shareholders to influence corporate activities in light of their faith, reports that more than $2 trillion in corporate assets are dedicated to "socially responsible investing." These investors view their participation in for-profit enterprises as expressing their religious beliefs.
Some critics argue that corporations enjoy certain government-created privileges, such as limited liability, and in exchange for those privileges, the government can limit the freedoms people exercise when they form corporations. However, limited liability isn't a privilege — it's a recognition of the fact that shareholders should not be liable for wrongdoing they could not have prevented, since the company is managed by others. Even if it were a privilege, the government is not allowed to force people to give up their constitutional rights in exchange for privileges. Certainly, government should not be empowered to restrict religious freedom in exchange for the opportunity to run a business.
Treating corporations as "persons" under the Constitution simply means respecting the rights of our fellow citizens who choose to come together as a corporation. They have the right to speak, to worship and to earn a living. The fact that they agree to act as a corporation shouldn't detract from their freedom.
Timothy Sandefur is a principal attorney at the Pacific Legal Foundation, and filed a friend of the court brief with the U.S. Supreme Court, supporting Hobby Lobby's right to challenge Obamacare's contraception mandate.